R v Hraichie (No. 1)
[2019] NSWSC 319
•25 March 2019
Supreme Court
New South Wales
Medium Neutral Citation: R v Hraichie (No. 1) [2019] NSWSC 319 Hearing dates: 25 March 2019 Date of orders: 25 March 2019 Decision date: 25 March 2019 Before: Johnson J Decision: 1. The audio-visual recording of the Offender's interview with the Australian Federal Police on 14 September 2016 is not to be published.
2. The transcript of the audio-visual recording of the Offender's interview with the Australian Federal Police on 14 September 2016 is not to be published.
3. The annexures labelled Annexures A to G to the Agreed Statement of Facts in the Commonwealth proceedings are not to be published.Catchwords: CRIMINAL LAW - sentencing hearing - Offender pleaded guilty to four charges - committing acts in preparation for or planning of terrorist acts (s.101.6(1)) Criminal Code (Cth)) - intentionally delivering letter threatening to kill (s.31 Crimes Act 1900) - wound with intent to murder (s.27 Crimes Act 1900) - cause grievous bodily harm with intent to cause grievous bodily harm (s.33(1)(b) Crimes Act 1900) - application for non-publication orders concerning certain evidence to be tendered at sentencing hearing - public interest in restricting further publication of or broadcasting of terrorist material by extremist groups - non-publication orders made Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Cases Cited: R v Dirani (No 32) [2019] NSWSC 275 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown)
Bourhan Hraichie (Offender)Representation: Counsel:
Solicitors:
Ms S Callan; Ms D New (Commonwealth Crown)
Mr LJ Carr SC (State Crown)
Ms GA Bashir SC; Ms G Huxley (Offender)
Commonwealth Director of Public Prosecutions (Commonwealth Crown)
NSW Director of Public Prosecutions (State Crown)
Lawyers Corp Pty Limited (Offender)
File Number(s): 2016/277456 (Commonwealth); 2016/108074 (State) Publication restriction: ---
Judgment
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JOHNSON J: Listed before the Court this morning are sentencing proceedings with respect to the Offender, Bourhan Hraichie, who has pleaded guilty to a number of offences including a terrorist offence.
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At the commencement of the proceedings this morning, Senior Counsel for the Offender made application by way of Notice of Motion dated 25 March 2019 for orders under the Court Suppression and Non-publication Orders Act 2010. The orders sought are based upon s.8(1)(e) of that Act, and seek that the audio-visual recording of the Offender's interview with the Australian Federal Police on 14 September 2016 not be published, the transcript of that interview not be published and that a number of documents referred to as annexures to the Agreed Statement of Facts in the Commonwealth matter not be published.
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Counsel for the Commonwealth Director of Public Prosecutions (“Commonwealth Director”) and the New South Wales Director of Public Prosecutions (“State Director”) have not opposed the making of the order.
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The sentencing hearing will involve placing before the Court a range of documents, including Agreed Statements of Facts in both the Commonwealth and State proceedings together with detailed written submissions prepared by counsel for the Commonwealth Director, the State Director and the Offender. That material will provide a clear foundation for fair and accurate reporting of the proceedings by the media.
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The Agreed Statements of Facts and the detailed written submissions provide a substantial and informative picture of the evidence and issues raised at the sentencing hearing.
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The submission made in support of the orders sought in the Notice of Motion is that the capacity to publish the three classes of material to which I have referred, would effectively be contrary to the public interest so that the Court should form the view that it is otherwise necessary in the public interest for a non-publication order to be made, and that the public interest in non-publication significantly outweighs the public interest in open justice.
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The Court is well aware of s.6 Court Suppression Non-publication Orders Act 2010 which emphasises the public interest in open justice. Section 8 comprises an exceptional power to make (in this case) a non-publication order if the circumstances identified in the section are demonstrated.
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I have had an opportunity to consider the material which is the subject of the application, as the material to be tendered at the sentencing hearing was furnished to me last Friday in advance of the hearing, in accordance with usual practice where there is a substantial volume of material to be tendered in sentencing proceedings.
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Put shortly, the audio-visual recording and the transcript of the audio-visual recording of the record of interview reveal the Offender speaking in terms which explain his acts by way of belief in and support for violent jihad in the name of Islamic State.
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The annexures to the Agreed Statement of Facts in the Commonwealth prosecution contain documents said to have been written by the Offender which, once again, contain extravagant language which may be readily understood as promoting extremist action in support of violent jihad in the name of Islamic State.
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I have recently been required to consider media applications for access to exhibits in a criminal trial for a terrorism offence. In R v Dirani (No 32) [2019] NSWSC 275, I gave a preliminary ruling refusing the media access to a wide range of exhibits in that trial. Of significant concern was the prospect of further publication and broadcasting of that material.
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Of course, the concern was not that the media would act irresponsibly with it. The concern was that, once the material was broadcast, it would be electronically available through various platforms so that those who wish to promote violent jihad, including Islamic State, could capture it and republish it, even selectively, to encourage persons to commit acts of violence.
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On the other hand, those who wish to take an anti-Muslim stance in the community may seek to capture the material and broadcast it using electronic platforms for their own purposes.
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In this way, groups of fixated people in the community would seek to use the material to urge and encourage action by two entirely contrary groups within the community.
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Use of material of this type in this way is not far-fetched. As I observed in R v Dirani (No 32) at [18]-[19], sentencing judges in terrorism cases have been well aware of the proliferation of sophisticated propaganda in the name of Islamic State, which has encouraged often young persons to become involved in the planning or commission of terrorist acts.
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It is clear from recent acts, well-known to the community, that persons taking a strong anti-Muslim position may well seek to use material of this type for their own purposes.
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This is part of the society in which we live where electronic material, once made available, cannot be recalled. It can be misused for criminal purposes by different groups in the community.
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In my view, this is a strong factor to take into account concerning the audio-visual recording of the Offender's record of interview.
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With respect to the transcript of that interview and the letters, they are in a different category. They are not electronic so that their possible dissemination using electronic platforms is not the same. However, once available and published, including photographs of some of these items, there is a capacity for their promotion and misuse in the way I have described.
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The fact that Islamic State has effectively been defeated geographically in the Middle East does not mean that the terrorist organisation is no longer in existence. It is well-known in the community that there is a continuation of its presence in the Philippines and in the Middle East, with the expectation that it is likely to continue to have available to it the capacity for sophisticated electronic publication, so that the use of propaganda in the name of Islamic State is a real and ongoing prospect.
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The use of strong propaganda by anti-Muslim extremist groups forms part of a continuing and regrettable state of affairs.
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I have set out in these reasons the substance of my conclusion that the orders sought in the Notice of Motion should be made.
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The issues I had raised are of particular concern in terrorism cases.
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In other classes of proceedings, the open justice principle remains the dominant factor which, subject to concerns in a particular case, will permit the media access to material tendered in open Court.
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However, in the circumstances of this case, and given the subject matter of these items, I am satisfied that it is appropriate to make the orders sought in the Notice of Motion.
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I should make clear that the media have not appeared on this application. I take it that the media were not given notice that this application was to be made. Given the structure of the Court Suppression and Non-publication Orders Act 2010, if the media seek to make application for the Court to reconsider the orders about to be made, that is an available process given the media's legitimate interest in the subject matter.
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Media representatives who are in Court will no doubt pass on to their particular organisations what I have just said, so that any application made by the media will be on an informed basis against the background of the ruling contained in this decision.
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For the reasons which I have just given, I make the following orders:
the audio-visual recording of the Offender's interview with the Australian Federal Police on 14 September 2016 is not to be published;
the transcript of the audio-visual recording of the Offender's interview with the Australian Federal Police on 14 September 2016 is not to be published;
the annexures labelled Annexures A to G to the Agreed Statement of Facts in the Commonwealth proceedings are not to be published.
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Those orders are made by reference to s.8(1)(e) Court Suppression and Non-publication Orders Act 2010. The orders operate until further order of the Court, and are to apply throughout the Commonwealth of Australia.
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Decision last updated: 29 March 2019
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